Jus ad bellum, jus in bello and non-international armed conflicts

06-11-2006 Article, Yearbook of International Humanitarian Law

Is it possible to apply all or part of the laws and customs of war in the event of civil war, leaving aside the question as to which of the warring parties was responsible for sparking off the struggle? That is the question to which this article seeks to offer a reply.

This article has been originally published in the Yearbook of International Humanitarian Law, T. M. C. Asser Press, vol. VI, 2003, pp. 167-198 and is reproduced here with the editor's kind permission.

Introduction

Of all the calamities that can befall a people or a state, civil war has always been considered one of the worst. Setting son against father, brother against brother and neighbour against neighbour, civil war is a merciless struggle that is not limited to the clash of armed forces. Characterised by denunciations, acts of On the pretext of doing nothing that might legitimise insurrection or rebellion, states refused for too long to adopt rules intended to limit violence in civil war and to protect its victims. Even today, the law applicable to such conflicts remains rudimentary and responds in only a very limited manner to the need for protection generated by internecine strife. Furthermore, each party accuses the other of having torn apart the social fabric and uses this argument to justify the escalation of violence. At a time when the criminal law cannot be enforced in part of the national territory, the party claiming to represent the legitimate government often inflicts the most severe penalties on the insurgents, who no longer recognise the authority of the national laws or the legitimacy of the power that is enforcing them; the courts hand down the maximum sentence for the crime of rebellion. As for the insurgents, they set up their own courts to penalise their adversaries or give free rein to reprisals.

Are the distinction between jus ad bellum and jus in bello and the principle of the autonomy of jus in bello with regard to jus ad bellum , which are not easily imposed even in conflicts between states, applicable to civil wars? In other words, is it possible to apply all or part of the laws and customs of war in the event of civil war, leaving aside the question as to which of the warring parties was responsible for sparking off the struggle? That is the question to which this article seeks to offer a reply. Before this question is considered, however, it has to be established whether the concepts of jus ad bellum and jus in bello do indeed apply in the event of civil war.